Nursing And Midwifery Council v Teasha Tashai Pestano

There are points that have arisen in this case which are potentially of general relevance to applications by regulators to extend interim suspensions or conditions of practice. I have therefore directed that this judgment be made publicly available.

The principle of open justice is well known; justice must be done and must also be seen to be done. This overarching principle manifests itself in more specific principles and rules that apply to different areas of the justice system. As stated by Sir Geoffrey Vos MR in PMC v A Health Board [2025] EWCA Civ 126:

“The Court must start from the position that very substantial weight must be accorded to open justice. The balance starts with a very clear presumption in favour of open justice unless and until that is displaced and outweighed by a sufficiently countervailing justification.”

There are circumstances in which other principles conflict with the principle of open justice. In those situations, the court will balance the competing principles, in accordance with rules and authorities that have developed over time.

There were three preliminary applications that were made in this case which involve open justice and other potentially competing principles. They were:

CPR 39.2 sets out the general rule that a hearing is to be held in public. A hearing, or part of it, must be held in private if, and only to the extent that,

In this case, I was satisfied that one of the criteria was satisfied. I will not identify in public which criterion it was as that might defeat the purpose of the hearing being in private. I was also satisfied that it was necessary, and not merely desirable, to secure the proper administration of justice to sit in private.

This judgment will be publicly available, but it does not include any detail of matters that were considered in private.

The applicant sought an order that it, and the respondent, would be given notice before the court considered any application under CPR 5.4C (2) to access court records. That was to enable the parties to make representations as to whether such access should be permitted. The court records include matters disclosed in the private hearing. I granted the application so that if a third party wishes to access court records then the parties could make representations as to whether or not access should be granted.

Neither party applied in this case for an order under CPR 5.4C (4) that access to the statement of case and other relevant documents be restricted. That was, presumably, because the statement of case did not appear to contain any information to which access should be restricted. It is, of course, open to the applicant to ensure that any statement of case does not, to the extent possible, contain confidential information, and it would be sensible of any applicant to ensure that this is the case.

The applicant applied under CPR 39.2 (4) for an anonymity order. Such an order must be made “if, and only if, [the court] considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that person”.

If the required protection can be provided by one or more court orders that in combination are less wide-ranging than a general anonymity order, then a general anonymity order is not likely to be “necessary”.

The skeleton argument from the applicant contained only 2 paragraphs on this particular anonymity application. It contained no detail of why this order was said to be “necessary” given (a) the order regarding access to the court file (b) the hearing being in private and (c) the fact that there was no inherent need to protect the identity of the registrant herself. At the hearing before me, the applicant was unable adequately to explain why an order to anonymise the identity of the registrant would, given the restrictions already imposed, justify a derogation from the principle of open justice.

The respondent is not a child or protected party, nor is the identity of the registrant a matter of national security, nor is it confidential information. Indeed, as I understand it, the identity of the respondent and the fact that they are currently suspended from practice is publicly set out on the applicant’s website so that employers and the public know of the suspension.

The identification of the respondent would also not result in any information being revealed that would adversely affect the interests of any other party. Protections to any other parties involved were provided by holding the hearing in private and an order restricting access to the court record.

The application to anonymise the respondent, in my judgment, falls a long way short of having shown that such anonymisation is necessary. I have therefore refused that application.

This is the second application for anonymity from this applicant that has been considered by me this week. The first was contained in a consent order. I declined to approve the proposed consent order as I wished to hear an explanation from the parties as to why anonymity was appropriate. The application for anonymity was then withdrawn. The applicant confirmed that “…the [previous] order contained an application for anonymity which was not made out by the evidence in the documentation. [The applicant has] reviewed the file, and [the applicant] agrees [that the order is not appropriate]”.

The interests of relevant parties in applications to extend interim orders of suspension or to impose conditions of practice can be protected by restricting access to the court records (including the statement of case and orders if necessary). The statement of case can be drafted to ensure confidential information is not disclosed. Hearings can be held in private, either in part or in full. The respondent in applications relating to professional regulation is, by definition, not likely to be a child. I suspect that for all those reasons it will be only on rare occasions, therefore, that an order for anonymity of the respondent, and indeed any other party, will be “necessary”. Any application for anonymity that is made will need to be supported by cogent evidence specific to the application being made.

As the hearing was held in private, this judgment does not contain information that should not be made publicly available. There are, however, some matters that should be publicly recorded to assist in future cases.

There are two bases on which an interim order can be made. The first is that it is “necessary for the protection of the public”. Only if suspension is “necessary” should the NMC Practicing Committee (the “panel”), or the court, consider whether to exercise its discretion to make such an order for the protection of the public, taking into account the factors identified in Hiew when assessing the facts of the particular case.

The threshold of the suspension being “necessary for the protection of the public” is, deliberately, a high one. The point was clearly made by David Lock KC in Persand [2023] EWHC 3356 (Admin). I note in particular paragraph 41:

“..in every case, the NMC Committee and the Court has to ask itself precisely why it is said to be necessary to impose an interim sanction on the nurse. If the case is that it is necessary to protect patients, then there needs to be an intense focus on precisely how and why the evidence demonstrates that patients may be at risk from the nurse and how serious that risk is. A case where patients can be shown to have suffered harm will clearly have more potency than a case, such as the present case, where there is very limited if any evidence that any patient has come to harm,. However, even if there is cogent evidence that a patient is at risk , a suspension will not usually be justified unless the imposition of conditions cannot reasonably protect patients from that risk”

A suspension removes the rights of the registrant to practice in their profession at a time when the allegations against them have not yet been proved. It may also result in the registrant losing their right to remain in the country, which was certainly anticipated in this case and may well have happened. These are very serious consequences.

In order to satisfy itself that a suspension or conditions are “necessary” there must be evidence of risk that enables the panel properly to reach that conclusion. That is something that needs to be assessed in each individual case based on an assessment of the particular risk.

As made clear in Persand, if the protection of the public can be achieved by the imposition of conditions of practice then it is difficult to see that it will be “necessary” to suspend a registrant in order to protect the public. It is also incumbent on the panel clearly to set out why, and based on what evidence, conditions on practice will not provide the necessary protection to the public.

If a nurse has been practising without issue in their professional life, especially if it is during the period of alleged risk, then that is likely to be evidence that there is limited, or no, risk to the public. The longer the period in which no issue has been identified, the stronger the evidence will be. Evidence from an employer of either the existence of issues or an absence of issue will clearly be of significant evidential value. Employers, however, generally have a duty to inform the regulator of issues. If there is no evidence from any employer of an issue then it is likely to be reasonable to infer that there has been no material issue in the clinical practice of the registrant.

The evidence whether a registrant has or has not been working in their professional life without issue is likely to be a significant factor when determining whether suspension is “necessary” for the “protection of the public”.

In this case, there was no evidence of any issue in the professional life of the registrant. Indeed, the evidence was that the employer “had no concerns about [the registrant’s] clinical practice” and that the registrant had a “faultless work history”.

The panel seems to have disregarded that evidence. It instead formed the conclusion that because the respondent had done something in their private life then it followed that there was a risk to the public in their professional life. That was not a conclusion that the panel should, in my judgment, properly have drawn from the evidence in front of it. Certainly, if the panel was intending to draw that conclusion then it needed to set out in clear terms how it reached that conclusion notwithstanding the evidence that there had to that point been nothing in the clinical practice of the registrant that had caused concern.

The initial panel decision also contained no explanation as to why the public could not be protected by imposing conditions rather than a suspension. The panel set out their conclusion that a suspension was to be imposed but failed to explain why conditions could not address the concerns raised. This was notwithstanding that the regulator had identified to the panel certain conditions which might be appropriate.

In my judgment, the facts of this case were substantially and significantly below the threshold for a suspension to be imposed on the grounds of it being “necessary” for protection of the public. The evidence of the lack of risk to the public in the clinical practice of the registrant was significant and not counterweighed by any meaningful or specific evidence to the contrary.

Based on the evidence presented to me today I was, however, just about satisfied that the very limited conditions of practice that I imposed were necessary to protect the public, taking into account the tests in Hiew. The reasons for this were given in the private hearing.

The threshold for suspension as “otherwise in the public interest” is also high. Such cases were described by Davis J in R (Sheikh) as likely to be “relatively rare”. The judgment in Persand summarises the authorities on the test and I need not set them out in full here.

When a panel is considering the public interest it should assume that the public have knowledge of the full facts of the case and will form balanced and carefully considered opinions, taking into account the arguments and evidence put forward by both parties. In this case the regulator told the initial panel that there were concerns if the registrant were to be “allowed to practice unrestricted”. In other words, the regulator seemed to accept that any such concerns could be addressed by restrictions on practice. The panel failed adequately to explain (a) how it reached the conclusion that conditions of practice would not be sufficient and that on public interest grounds there should be a suspension and (b) how it took into account the arguments and evidence put forward. Their written reasons tend, unfortunately, also to adopt slightly emotive descriptions of certain (disputed) facts rather than a more objective description.

In my judgment, in this case and for the reasons given in private, the test of suspension or conditions of practice being “otherwise in the public interest” was not met. The initial panel also could not, in my judgment, on the evidence before it at that time have reasonably concluded that a suspension or conditions of practice were justified as being “otherwise in the public interest”.